ACE Fire Underwriters Ins. Co. v. Simpkins

• Decision Date: 30 August 2012
• Docket Number: No. 02–11–00228–CV.,02–11–00228–CV.
• Citation: 380 S.W.3d 291
• Parties: ACE FIRE UNDERWRITERS INSURANCE COMPANY, Appellant v. Cynthia SIMPKINS, Beneficiary of Roderick Simpkins, Deceased, Appellee.
• Court: Texas Court of Appeals

380 S.W.3d 291

ACE FIRE UNDERWRITERS INSURANCE COMPANY, Appellant

v.Cynthia SIMPKINS, Beneficiary of Roderick Simpkins, Deceased, Appellee.

No. 02–11–00228–CV.

Court of Appeals of Texas,

Fort Worth.

Aug. 30, 2012.

Darryl J. Silvera and J. Kevin Thompson, The Silvera Firm, Dallas, TX, for Ace Fire Underwriters Insurance Company.

A. Robert Lamb, Jr., Law Office of A. Robert Lamb, Jr., Addison, TX, for Cynthia Simpkins, Beneficiary of Roderick Simpkins, Deceased.

Panel: LIVINGSTON, C.J., GARDNER and GABRIEL, JJ.

OPINION

ANNE GARDNER, Justice.

I. Introduction

Appellant Ace Fire Underwriters Insurance Company (Ace Fire) appeals the trial court's judgment following a jury verdict that Roderick Simpkins suffered a compensable injury that was a producing cause of his death. Ace Fire, the party with the burden of proof in the trial court, contends in six points that the evidence establishes as a matter of law that the fall leading to Simpkins's death did not originate in or arise out of his employment; that the trial court erred by submitting incorrect and unnecessary questions, definitions, and instructions in the jury charge and by failing to submit additional definitions and instructions; and that the trial court erred by awarding Appellee Cynthia Simpkins attorneys' fees of $200 per hour when the Texas Labor Code and workers' compensation rules allegedly cap attorneys' fees at $150 per hour. We affirm.

II. Background

Simpkins worked at Coca–Cola Enterprises. He fell at work on September 9, 2005, was admitted to the hospital that day, and died seven days later. Simpkins's surviving spouse, Cynthia, and their daughters filed a claim for workers' compensation benefits. Ace Fire denied the claim, and the dispute proceeded through the workers' compensation hearing process with an appeals panel affirming the hearing officer's decision that Simpkins's death resulted from a compensable injury. Ace Fire appealed the appeals panel decision by filing suit in Tarrant County District Court.

Cynthia, Simpkins's wife of twenty-three years, received a telephone call on September 9, 2005, from a Coca–Cola employee who told her that Simpkins had fallen. Cynthia arrived at the Coca–Cola office before Simpkins was transported by EMS to the hospital. She was also present when Simpkins was admitted to the hospital.She testified that she does not know what caused Simpkins to fall.

Cynthia testified that Simpkins was diagnosed with Type 2 diabetes in 1991. Simpkins previously smoked, but he stopped in 1982. His diabetes, although normally controlled by oral medications, diet, and exercise, worsened in 2004, and he began receiving daily insulin injections. Cynthia testified that Simpkins had been diagnosed before September 2005 with high cholesterol, but she was not sure if he had been diagnosed with high blood pressure. She also acknowledged her deposition testimony, during which she had agreed that Simpkins was predisposed to have a stroke or a transient ischemic attack (TIA) ¹ because of his diabetes, high blood pressure, high cholesterol, and his weight.² However, she testified that she had reviewed Simpkins's medical records from before and after his fall and that the records do not contain any mention of his predisposition to having a stroke or that he had suffered a stroke before he fell.

Melody Sims is a Coca–Cola employee who worked at the same location as Simpkins. She testified that Simpkins's job was to collect money and prepare it for deposit in the bank.

Sims testified that she was at work the day of Simpkins's fall. The jury watched a video recording of Simpkins's fall during Sims's testimony, and Sims described for the jury the office areas and persons visible on the video. Sims testified that there were no chemicals, noxious fumes, or anything else connected to Simpkins's job that would have caused him to fall and that she saw nothing on the floor that would have caused him to slip and fall, trip and fall, or collapse. She admitted, however, that she was focused on Simpkins rather than the floor.³ Sims also agreed that the floor onto which Simpkins fell is a hard surface, that the floor belongs to Coca–Cola, and that Simpkins was performing his regular job duties at the time he fell.

Mike Edwards witnessed Simpkins's fall. Edwards testified that he was walking through the building toward the cashier's window and that he saw Simpkins, said hello, and asked him how he was doing. Edwards also testified that Simpkins said he was “fine” but that Simpkins then started shaking and grabbed at the door as he fell. Edwards explained, “His eyes rolled back, and he was shaking. And he just was out.... He collapsed.” Like Sims and the other Coca–Cola employees, Edwards testified that he did not observe anything on the floor before Simpkins's fall that would have caused him to slip or trip and that there were no chemicals or anything else connected to Simpkins's job that would have caused him to fall.

On cross-examination, Edwards acknowledged that his written statement, prepared shortly after the incident, does not mention that Simpkins's eyes rolled back in his head or that he was shaking before he fell. Edwards also agreed that Simpkins was performing his job duties at the time he fell but testified that he does not believe that Simpkins's job caused his fall. Edwards, although he acknowledged that he has no medical training, also testified that Simpkins was unconscious before his head hit the floor.

Dr. Roberto Nieto, a board-certified neurologist, testified as an expert for Ace Fire. He testified that a stroke occurs when a blood clot travels to the brain, becomes lodged in an artery, and cannot pass any further. If the blockage is not relieved, permanent brain damage will result. Dr. Nieto testified that a TIA is a form of a stroke that resolves quickly. Dr. Nieto explained that, with a TIA, there is not “any hard evidence of any damage to the brain,” so a TIA diagnosis is made by looking at the patient's medical history for risk factors and the event itself for the patient's symptoms. Dr. Nieto testified that Simpkins was at risk for having a stroke because of his age, high blood pressure, diabetes, history of smoking, and elevated cholesterol. Simpkins was also in the “high risk factor category” for having a heart attack.

Describing what he observed on the videotape of Simpkins's fall, Dr. Nieto testified that he does not know whether Simpkins lost consciousness or not but that he collapsed with a “sudden loss of postural tone,” meaning that he lost the ability to keep his body in a vertical position. From his review of the hospital records, Dr. Nieto testified that Simpkins sustained skull fractures from hitting his head on the floor of Coca–Cola's premises and that the autopsy report lists Simpkins's cause of death as a skull fracture.

Dr. Nieto testified that the hospital intake notes indicate that Simpkins had left facial droop and that his left leg and left arm were paralyzed, symptoms consistent with Simpkins having suffered a stroke. He also agreed, however, that facial droop and paralysis can result from pressure to the brain, that the pressure could come from bleeding inside the skull, and that Simpkins's skull fracture caused him to bleed to the extent that the neurosurgeon had to relieve the resulting pressure. Dr. Nieto testified that he agreed with the pathology report from Simpkins's autopsy that Simpkins did not suffer a massive stroke and that Simpkins indeed died from his head injuries, but he testified that he also felt “that something additional happened just prior to his collapse.” Specifically as to Simpkins's cause of death, Dr. Nieto testified that he agreed with Dr. Krouse's findings.

Dr. Nieto listed numerous conditions, including an irregular heart rhythm, a TIA, a stroke, and a pulmonary embolism, that could have caused Simpkins's fall, and he testified that he “definitely believe[d] that something happened to [Simpkins] that day in his body that caused him to collapse and not brace his fall.” Dr. Nieto testified that “clearly[,] something related to his heart or brain or other organ may have—or likely occurred at that point that caused him to collapse.” But Dr. Nieto also testified that he could not determine whether Simpkins had suffered a stroke, a pulmonary embolism, or any other condition. Regardless, Dr. Nieto testified:

Q. So in—in your opinion, did anything in connection with Mr. Simpkins' job at Coca–Cola cause him to fall?

A. No.

Q. Do you have an opinion as to whether or not anything at his job, at Mr. Simpkins' job caused him to fall?

A. I don't—

Q. You can answer.

A. I don't see any—anything that caused him to fall at work.

Dr. Marc Krouse, the Chief Deputy Medical Examiner in Fort Worth who conducted the autopsy in this case, testified as an expert for Appellee. Dr. Krouse conductedthe autopsy on September 17, 2005, and dictated the autopsy report on October 28, 2005. As part of that process, he reviewed the investigator's report, information about how Simpkins was injured, and the videotape of Simpkins's fall.

Dr. Krouse described the autopsy process to the jury and testified that he found an abrasion, one-inch by one-half-inch, on the back of Simpkins's head near the center as well as a bruise in the soft tissue under his scalp. Dr. Krouse also described the injuries to Simpkins's brain, including bruises to the front and side of the right temporal lobe and death of brain tissue caused by interruption of blood flow. He testified that bleeding on the brain is a sign of tissue death, and any bleeding on the brain is dangerous. The bleeding causes pressure which can affect the person's motor skills and speech, and Dr. Krouse testified that facial droop and paralysis is consistent with traumatic brain injury with bleeding on the brain.

Dr. Krouse testified that the cause of Simpkins's death was blunt force trauma to the head due to a fall. He also testified that he did...